April 03, 2014 Articles

Young Lawyer's Corner: Those Pesky Rules

Ensuring familiarity and compliance with the rules is one of the important and fundamental aspects of successful appellate advocacy.

By Anthony T. Eliseuson

One of the most important—if mundane—aspects of appellate practice is ensuring compliance with the rules. This includes both the federal or state rules of procedure and the specific rules and procedures of each appellate court. Even within the federal system, there is a wide variance in practice with each circuit having adopted its own circuit rules, many having substantive internal operating procedures that contain another body of procedural requirements, and still others adopting or endorsing style manuals indicating the circuit’s preferences for font size, style, and other details. Additionally, most courts have various non-codified preferences or pet peeves that only experienced counsel or former clerks are likely to know.

Such “quirks” are voluminous enough themselves to more than fill the rest of this article, but here are a few by way of illustration:

  • The Eleventh Circuit, D.C. Circuit, and others require a brief to designate the most important authorities relied upon by use of asterisks in the table of citations. Eleventh Circuit Rule 28-1(e); D.C. Circuit Rule 28(a)(2).
  • The Seventh Circuit has very specific jurisdictional statement requirements for both the appellant and the appellee (particularly if the appellee disagrees with the appellant’s statement of jurisdiction). Seventh Circuit Rule 28(a)–(b) and Rule 3 (docketing statements).
  • The Seventh Circuit requires a docketing statement and has a strong preference for that statement to be filed contemporaneously with the notice of appeal in the district court. Seventh Circuit Rule 3. If the appellant fails to file the docketing statement within 14 days of filing the notice of appeal, counsel are fined $100. Rule 3(c)(2). If the statement is not filed within 28 days, the appeal is deemed abandoned.
  • The Seventh Circuit allows for 12-point font (and 11-point font in footnotes) notwithstanding the Federal Rules of Appellate Procedures’ 14-point-font requirement. Seventh Circuit Rule 32(b).
  • The Third Circuit requires the statement of the issues in the appellant’s brief to designate “by reference to specific pages of the appendix or place in the proceedings at which each issue on appeal was raised, objected to, and ruled upon.” Third Circuit Rule 28.1(a)(1).
  • The Tenth Circuit strongly encourages (nearly to the point of a nonbinding requirement) that multiple appellees file a single joint brief (and nearly all circuits of course prefer joint briefs where possible). Tenth Circuit Rule 31.3(A). If multiple briefs are filed, a certificate must be filed explaining why separate briefs were necessary. Rule 31.3(B).
  • The D.C. Circuit prohibits the use of “passim” in the table of authorities. D.C. Circuit Rule 28(a)(2).
  • The Federal Circuit requires footnotes to be in the same size font as the text of the brief, and a violation of this rule is one of the “top ten” reasons briefs are rejected in that circuit. Fed. Cir. Prac. Note to Rule 32; see also Top Ten Reasons Why Briefs Are Rejected.
  • The Federal Circuit prohibits any counsel’s name from being included on the brief unless that counsel has filed a separate entry-of-appearance form prior to the brief’s filing—the violation of this rule also often results in the brief being rejected for non-conformance. Fed. Circuit Rule 47.3(a) (“Every attorney named on a brief must enter an appearance.”).
  • Procedures for dealing with the record and docketing the appeal vary substantially from circuit to circuit. A failure to comply can result in appendices being rejected, resulting in time-consuming corrective work, and some violations carry the presumption of sanctions. See, e.g., Fourth Circuit Rule 30(a) (court may sanction counsel for unnecessary appendix designations).

Navigating through these various rules, procedures, and other “quirks” can be complex and certainly time-consuming. In this day and age of increasing client pressure on efficiency, there is a large temptation to simply assume personal familiarity with the rules or, perhaps worse, assume a prior brief you or your firm filed complies with the rules. Avoid that temptation. Even if that brief your colleague filed last month did in fact fully comply—and surprisingly often even the most experienced appellate practitioners and firms miss “little” issues without being rebuffed by the clerk’s office—the rules and procedures have this annoying habit of being revised from time to time. Indeed, even when one is very conscientious in trying to comply with all of the idiosyncrasies of the various rules and procedures, it is easy to discover, on a fresh look, something one missed the first time.

The importance of complying with all such rules and operating procedures cannot be overstated. While the consequences can range in severity, at a minimum, noncompliance is likely to be seen by the court and the court’s law clerks as a sign of inexperience or lack of care, which colors their view of your arguments. Often technical noncompliance will require a new amended brief to be filed. While most, perhaps all, circuits now allow a grace period for such technical noncompliance, it is embarrassing to have a brief rejected because of an oversight of the circuit’s rules. And as embarrassing as that might be, noncompliance with more important procedural requirements can lead to significant consequences for your professional reputation with the court or for your client’s appeal.

For example, in a recent opinion that was featured on various legal web sites, the Seventh Circuit harshly reprimanded (and fined) counsel for a criminal defendant for failure to comply with Seventh Circuit Rule 30, which has provisions relating to the required appendix to the appellant’s brief. While this counsel also had prior issues regarding his representations to this court that likely colored the tenor of this opinion, the Seventh Circuit spent nearly half of its opinion addressing this issue:

We have said enough to decide the appeal. Before closing, however, we add that [the counsel], who represented Johnson in this court, made it unduly hard for us to access the materials necessary for disposition. The first step in analyzing an appeal is understanding the basis of the district court’s decision. A court of appeals can’t decide whether a district judge made clearly erroneous findings or committed a legal error without knowing what the judge did and why. That’s why Circuit Rule 30(a) requires counsel for the appellant to include, in an appendix to the brief, “any opinion, memorandum of decision, findings of fact and conclusions of law, or oral statement of reasons delivered by the trial court or administrative agency upon the rendering of that judgment, decree, or order.” Circuit Rule 30(b)(1) adds that the appendix also must include “any other opinions, orders, or oral rulings in the case that address the issues sought to be raised.”

Johnson filed a pretrial motion asking the district court to exclude evidence that Williams had selected Johnson from the array. The judge denied this motion in an unreasoned minute order entered on July 3, 2012. Anyone reading [appellant’s] brief would think that the court had no reasons—that the decision was wholly arbitrary. But the brief for the United States told us that there were findings and reasons, and it includes a short quotation from the hearing held on July 3. Unfortunately, the United States did not supply the full transcript—and when we looked for it to prepare for argument, we discovered that it was not in the record. That hampered our ability to evaluate the arguments for both sides. (Shortly after argument it was added to the record; we have retrieved and read it.)

That the judge gave reasons, which [appellant’s counsel] omitted, shows that he violated not only Rule 30(b)(1) but also Circuit Rule 30(d): “The appendix to each appellant’s brief shall contain a statement that all of the materials required by parts (a) and (b) of this rule are included. If there are no materials within the scope of parts (a) and (b) of this rule, counsel shall so certify.” Johnson’s brief contains this representation: “I, . . . , counsel for the Defendant—appellant Mr. Mason Johnson, state that the appendices submitted with this brief on appeal incorporate the material required under Circuit Rule 30(a) and (b).” This representation is false.

We asked [counsel] at oral argument how the omission and falsehood had occurred. He replied that he had been retained as Johnson’s lawyer late in the process. . . .

. . . .

[Counsel] should have ordered the transcript, noted in the Rule 30(d) statement that it was being prepared and would be furnished as soon as possible, and provided it before the panel of judges started their preparation (which happens a few weeks before argument). He did none of these things, choosing deceit over assistance to the court. Could [counsel] have thought that neither the prosecutor nor any one of the three judges would notice that the district judge’s explanation for her decision was missing? Yet he not only failed to order the transcript but also ignored it once the prosecutor had it prepared and relied on it in the brief for the United States. [Appellant’s] reply brief, like his opening brief, proceeds as if the district judge neither had nor gave any reason for her decision.

[Counsel] may not have set out to develop a reputation as a lawyer whose word cannot be trusted, but he has acquired it. This opinion serves as a public rebuke and as a warning that any further deceit will lead to an order requiring [counsel] to show cause why he should not be suspended or disbarred. We also direct [counsel] to pay $2,000 as a sanction for his intentional violation of Circuit Rule 30(d).

United States v. Johnson, No. 13-1350, 2014 U.S. App. LEXIS 2303, at *6–11 (7th Cir. Feb. 6, 2014) (citations omitted).

Johnson’s counsel is certainly not alone in being fined for a violation of Seventh Circuit Rule 30. See United States v. Patridge, 507 F.3d 1092, 1096 (7th Cir. 2007) (“This court regularly fines lawyers who violate Circuit Rule 30 yet falsely certify compliance. . . .”); United States v. Rogers, 270 F.3d 1076, 1084–85 (7th Cir. 2001); In re Galvan, 92 F.3d 582, 584–85 (7th Cir. 1996).

Nor is the Seventh Circuit alone in sanctioning noncompliance with its circuit rules. See, e.g., In re Violation of Rule 28(d), 635 F.3d 1352 (Fed. Cir. 2011) (imposing a fine of $1,000 on counsel for over-designating materials in brief as confidential); In re Chadmoore Commc’ns, 1997 U.S. App. LEXIS 34533, at *1–2 (D.C. Cir. Oct. 28, 1996) (ordering counsel to show cause as to why they should not be fined $500 for violating D.C. Circuit Rules relating to emergency-filing procedures). There are numerous other show-cause orders issued regarding other violations that ultimately do not ripen into fines.

While the above counsels’ failures “only” impacted their pocketbooks and reputations (and not their respective clients’ appeal), the failure to comply with the rules can have more far reaching consequences. For example, an appellee that sought sanctions for a frivolous appeal was denied that remedy—not because the court determined the appeal was non-frivolous, but because counsel failed to comply with the requirements of the rules for requesting sanctions:

Northrop contends that the appeal is frivolous—which it is—and asks for sanctions. The request is in Northrop’s appellate brief. But Fed. R. App. P. 38 provides that a litigant seeking sanctions must request them in a “separately filed motion.” And this court is not inclined to award sanctions in favor of a party that cannot be bothered to follow the rules itself. [Law Firm], which represents Northrop, should be able to tell the difference between residence and domicile, and should not have any difficulty complying with Rule 38.

Two weeks after oral argument, on the same day it filed its amended notice of removal, Northrop filed a separate motion for sanctions. This comes too late. If we were seriously considering sanctions, we could have initiated the process ourselves promptly after oral argument (if not before). There is little point to requesting sanctions twice, once in a brief and again by motion, and the duplication can cause both confusion and extra work for everyone. Rule 38 permits a court of appeals to award sanctions, after giving notice and an opportunity to respond, whether or not a litigant files a separate motion. Our Practitioner’s Handbook for Appeals 45 (2003 ed.) tells counsel that the court may elect to issue such a notice if a brief requests sanctions. Unless the court gives notice, however, an adverse litigant is free to ignore a request made in a brief. Likewise an adverse litigant can safely ignore a post-argument motion for sanctions, unless the court calls for a response.

Heinen v. Northrop Grumman Corp., 671 F.3d 669, 671–72 (7th Cir. 2012) (emphasis added, citations omitted).

While these examples serve as perhaps extreme illustrations of the negative consequences that can befall a counsel for failing to comply with the rules, they are certainly not isolated incidents. The Federal Reporter is filled with decisions in which the failure to timely file a notice of appeal or a brief or to perform some other required task results in the dismissal of the appeal. In short, while it is certainly not glamorous, ensuring familiarity and compliance with the rules is one of the important and fundamental aspects of successful appellate advocacy.

 

Keywords: litigation, appellate practice, circuit rules, Heinen v. Northrop Grumman Corp., brief writing

 

Anthony T. Eliseuson is a partner in the Chicago, Illinois, office of Dentons US LLP.


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